{"id":4857,"date":"2018-12-30T10:48:25","date_gmt":"2018-12-30T10:48:25","guid":{"rendered":"http:\/\/legalblog.ie\/challenging-public-decisions\/"},"modified":"2023-09-25T22:26:06","modified_gmt":"2023-09-25T22:26:06","slug":"challenging-public-decisions","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/challenging-public-decisions\/","title":{"rendered":"Administrative Accountability"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Overview\" title=\"Overview\">Overview<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Open_Government\" title=\"Open Government\">Open Government<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Governmental_Information\" title=\"Governmental Information\">Governmental Information<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Regulatory_Bodies\" title=\"Regulatory Bodies\">Regulatory Bodies<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Public_Representatives\" title=\"Public Representatives\">Public Representatives<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Parliamentary_Questions\" title=\"Parliamentary Questions\">Parliamentary Questions<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Judicial_Challenge_to_Legality\" title=\"Judicial Challenge to Legality\">Judicial Challenge to Legality<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#European_Law\" title=\"European Law\">European Law<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Tribunals\" title=\"Tribunals\">Tribunals<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Tribunals_of_Investigation\" title=\"Tribunals of Investigation\">Tribunals of Investigation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Commissions_of_Investigations\" title=\"Commissions of Investigations\">Commissions of Investigations<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/challenging-public-decisions\/#Oireachtas_Enquiries\" title=\"Oireachtas Enquiries\">Oireachtas Enquiries<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Overview\"><\/span>Overview<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The public service makes decisions which affect the rights and interests of individuals across a whole host of areas on a daily basis.\u00a0 In some cases, there are elements of discretion in relation to the exercise of the power.\u00a0 More generally, the rights of entitlement of individuals are fixed by law.<\/p>\n<p>There exist mechanisms for challenging the decisions of public bodies.\u00a0 These include Court challenges of decisions by way of public review (which may be expensive) and appeals.<\/p>\n<p>A Court challenge does not look at the merits of the decision.\u00a0 Instead, it looks at whether the decision is legal.\u00a0 Generally, a decision will not be found invalid unless it is so unreasonable as to be ordinary outside the powers of the decision maker.<\/p>\n<p>In recent decades, many public bodies have adopted internal complaints and review system. \u00a0Many agencies have published charters of the rights of members of the public, which allow internal review by independent officers in the department or body and in some cases an external appeal.<\/p>\n<p>There are several public bodies which represent public interest including the Competiton and Consumer Protection Commission,\u00a0 the Workplace Relations Commission, the\u00a0 ODCE and various Ombudsman bodies.<\/p>\n<p>In one sense the minister is responsible for the department through the Oireachtas.\u00a0 Constituents can request their TDs to raise questions of the minister.\u00a0 Considerable time is given over to the answering by ministers of their functions in the Dail.<\/p>\n<p>Recourse is frequently had by members of the public to TDs to lobby governmental departments on their behalf.\u00a0 Similarly, other bodies may advocate on behalf of the individual.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Open_Government\"><\/span>Open Government<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Freedom of Information Act, 1997 gave members of the public right of access to official information to the extent possible consistent with the public interest and the rights of privacy of others. The legislation was substantially amended in 2003 and was updated and replaced in 2014.<\/p>\n<p>The legislation establishes rights for individuals to gain access to information held relating to them by public bodies, to have the information amended where incorrect and to obtain reasons for decisions. It also requires public bodies to make available to the public, a wide range of information on their operation and processes.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Governmental_Information\"><\/span>Governmental Information<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The openness and transparency of government have been radically increased by the advent of the Internet. \u00a0Reports and consultations which were formerly published and made available through the Government Publications Office at a price, are now available free\u00a0online.\u00a0 There is now an enormous amount of information on governmental matters available on the government websites.<\/p>\n<p>The Citizens Information Board provides information and advice and advocacy in relation to a range of public services.\u00a0 They operate citizen information centres, low call phone services and publish a very wide range of information mainly in the form of simplified guidance for individuals, is published on citizensinformation.ie<\/p>\n<p>The basis.ie website has been replaced by\u00a0singlepointofcontact.ie pursuant to the EU Services Directive which provides business access to state information and services. \u00a0It deals with basic business matters such as business online, paying taxes regulatory and employment issues. which in turn links to individual departmental and governmental bodies websites.<\/p>\n<p>Individuals agencies and departments have websites containing a vast amount of information on the areas in which they exercise authority.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Regulatory_Bodies\"><\/span>Regulatory Bodies<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An increasing trend over the last 45 years has been the creation of regulatory bodies. \u00a0Some of this has been driven by European Union legislation requiring the State to open competitions in certain areas formerly provided exclusively by public commercial state-sponsored bodies.<\/p>\n<p>The Central Bank (replacing its Financial Services Regulator division)\u00a0 regulates banking, insurance and brokers.\u00a0 The Commission for Aviation Regulation and Commission for Communications Regulation and the Commission for Regulation of Utilities each play very significant regulatory roles in their sector.<\/p>\n<p>Each effectively polices their respective areas.\u00a0 This has coincided with privatisation in the energy and telecommunication sector generally.\u00a0Regulators may be subject to some governmental controls in their sector, subject in most cases to a common EU framework.<\/p>\n<p>Regulators have various mechanisms to investigate and regulate, make rules, make and impose standards and output quality levels. They may have powers to enforce decisions with appeal mechanisms. There may be provision for prosecution by the body and increasingly, for administrative penalties.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Public_Representatives\"><\/span>Public Representatives<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Recourse to public representatives is a common means of having grievances reviewed. It commonly involves the politician writing a letter to the minister responsible.<\/p>\n<p>Opposition or previous officeholders may write personally to the Secretary-General. Ordinary backbenchers may write to the Secretary-General informally or to an official they may know.<\/p>\n<p>The letter is sent to the minister\\&#8217;s office and the department generally acknowledges receipt with a copy to the constituent.\u00a0 A\u00a0 final reply may be prepared by an official involved in the original decision.<\/p>\n<p>Generally, the decision will not be altered.\u00a0 The ministerial reply in relation to complaints may give fuller reasons and rationale in respect of a decision.<\/p>\n<p>In practice, much of the role played by representatives is advisory in relation to existing rights.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Parliamentary_Questions\"><\/span>Parliamentary Questions<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There are various types of parliamentary questions.\u00a0 Generally, the name of the person concerned is not published. \u00a0The principal purpose is to air grievances.\u00a0Most questions are asked by opposition TDs. Government TDs will have direct access to the minister.<\/p>\n<p>Copies of all parliamentary questions are presented to the Dail and seen by the Secretary-General.\u00a0 Ministers will be briefed in relation to the background, in order to answer supplementary questions.<\/p>\n<p>Replies to written questions are usually prepared by senior officials.\u00a0 The replies are provided by the minister\\&#8217;s office to the Dail to be passed to the TD concerned and for publication in the Dail\\&#8217;s record.<\/p>\n<p>By\u00a0convention, TDs receive answers to written questions promptly, usually within three to five days.\u00a0About 30,000 to 40,000 parliamentary questions a year are submitted.\u00a0 Only about 5% are answered orally.<\/p>\n<p>Questions may only be raised on matters for which a department has direct responsibility. Debates or statements are prohibited. \u00a0The decision is not changed nor is it reviewed.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Judicial_Challenge_to_Legality\"><\/span>Judicial Challenge to Legality<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Judicial review challenges the legality of a decision.\u00a0 It does not review the merits of or substitute the decision.\u00a0 If a decision is found to be unlawful judicial review is likely to be costly and prolonged.\u00a0 The cost is well beyond the reach of the vast majority of citizens.<\/p>\n<p>Judicial review involves a challenge to legality.\u00a0 This may be based on the decision being outside the powers of the decision maker.\u00a0 Public bodies\\&#8217; activities and operations, their jurisdiction and powers are regulated in detail by law. \u00a0If the decision falls outside these powers then it may be held void.<\/p>\n<p>Decisions may be made in accordance with law but the constitutional rights to fair procedure of the citizen may be disregarded. \u00a0The courts will rarely look at the merits of the dispute unless it is so unreasonable that it is clearly unlawful.\u00a0 This effectively a determination that no reasonable body could have formed the relevant opinion.<\/p>\n<p>Fair procedures or constitutional justice requires that certain cases where the key individual rights are affected the decision maker must be free from bias and the person concerned must be given a chance to put his side of the case.\u00a0 The complexity and nature of the decision will depend on the degree of fair procedures required.<\/p>\n<p>The decision maker must act in good faith.\u00a0 It must determine the decision only on the merits rather than extraneous conditions.<\/p>\n<p>There may be a legitimate expectation of entitlement to be heard in relation to applying for a benefit.\u00a0 The citizen should not be arbitrarily deprived of there an opportunity to be heard fairly.<\/p>\n<p>Decisions are sometimes challenged on the basis that the underlying legislation itself infringes the Constitution. \u00a0In this case, the Courts can decide that the law itself is invalid.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"European_Law\"><\/span>European Law<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The European courts interpret and apply law made by the European Union.\u00a0 Law made by the <u>EU o<\/u>verride Irish law if there are inconsistencies.\u00a0The Irish Courts apply European Union law of their own accord.\u00a0 It is possible to refer questions of European law to the European Court.<\/p>\n<p>It is possible for any European Union citizen to petition the European Parliament. Petitions are forwarded to the competent commissioner and director general for a response.<\/p>\n<p>The European Ombudsman hears complaints in relation to disputes between citizens and the EU.\u00a0 They may relate to discrimination, delay, unfair treatment in dealing with European institutions.\u00a0 The Ombudsman can act of its own initiative or after complaint.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Tribunals\"><\/span>Tribunals<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There is a range of tribunals which hear disputes in relation to particular matters. They are usually established by law and are broadly similar to courts, but are not courts.<\/p>\n<p>There is a wide range of tribunal commissioners, controllers\u2019 registrars, commissions, etc. acting as primary decisions making or appeal bodies across most government sectors.\u00a0In some cases, an appeal is made directly to a government minister or department.<\/p>\n<p>The Workplace Relations Commissions determines disputes in relation to workplace and equality matters. The Social Welfare Appeals Office hears determinations in relation to social welfare entitlements.\u00a0 .The Refugee Appeals Tribunal hears appeals in disputes from the Office of Refugee Applications Commissioner.<\/p>\n<p>Typically the tribunals are independent and decide cases independently of the administration and impartially. \u00a0They usually reach legally binding decisions.\u00a0 Lawyers may or may not be present.<\/p>\n<p>The tribunal may or may not conclude or consist of lawyers.\u00a0 In some cases, there is a lawyer chairperson and representatives of different interests on both sides.\u00a0\u00a0The procedures may be flexible and less formal. \u00a0They must, however, conform to the requirements of constitutional justice.<\/p>\n<p>They tribunal may bring its own expertise to bear on particular areas.\u00a0 They avoid legal costs in view of their own expertise and flexible procedures.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Tribunals_of_Investigation\"><\/span>Tribunals of Investigation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Tribunals of inquiries have been set up from time to time to examine particular matters of public concern. The legislation provides extensive powers.\u00a0 The tribunal chairman is typically a judge. The enquiry concludes with a report by the tribunal, in relation to the matter.<\/p>\n<p>The tribunal is set up under a resolution of the Oireachtas to inquire into certain matters within its terms of reference.\u00a0 This does not count as administration of justice so that full legal Court procedures will not apply. Because a\u00a0persons integrity or good name may be put in question, persons enjoy constitutional rights in respect of their dealings with tribunals.<\/p>\n<p>Generally, tribunals are held in public.\u00a0 A tribunal of enquiry is effectively an inquisition into a matter.\u00a0 It involves taking evidence in public and ultimately producing a report.<\/p>\n<p>The witnesses and persons concerned are questioned and cross-examined in a similar manner to Court.\u00a0 The procedures may be close to but not quite as formal as Court.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Commissions_of_Investigations\"><\/span>Commissions of Investigations<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Commissions of Investigation Act, 2004 regulates commissions.\u00a0 Commissions tend to be in relation to specific acts or events such as the Monaghan bombing, child abuse in the Dublin diocese etc.<\/p>\n<p>The government can create a commission on a proposal by a minister, approved by the Minister for Finance.\u00a0 The Houses of the Oireachtas must approve the order establishing the commission.<\/p>\n<p>A commission may conduct an investigation and inquiry into any matter that it considers appropriate within the scope of its Oireachtas authoity, provided it complies with its own rules and procedures.\u00a0 It generally conduct its proceedings in private unless there are exceptional reasons. \u00a0It can compel witnesses to give evidence.\u00a0 It can compel production of documents.<\/p>\n<p>The commission\u00a0 reports to a minister. \u00a0The minister must publish the final report unless it is prejudicial to criminal procedures in proceedings in progress.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Oireachtas_Enquiries\"><\/span>Oireachtas Enquiries<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Houses of the Oireachtas have inherent power to initiate public enquiries.\u00a0Parliamentary enquiries are used in relation to matters of general public concern such as the DIRT enquiry. They may investigate facts that are of public importance.<\/p>\n<p>Parliamentary enquiries are common in other countries but are limited by constitutional considerations in Ireland insofar as they lead to conclusions reflecting on the good name of private citizens.<\/p>\n<p>The Houses of the Oireachtas cannot interfere with the due process of law.\u00a0The power of enquiry may not breach constitutional rights.\u00a0The Supreme Court has decided the Oireachtas subcommittees do not have powers to make findings of fact which adversely affect a person\\&#8217;s reputation or put them at risk of having been found to have committed an offence.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-4857\" data-postid=\"4857\" class=\"themify_builder_content themify_builder_content-4857 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Overview The public service makes decisions which affect the rights and interests of individuals across a whole host of areas on a daily basis.\u00a0 In some cases, there are elements of discretion in relation to the exercise of the power.\u00a0 More generally, the rights of entitlement of individuals are fixed by law. There exist mechanisms [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[202],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4857"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=4857"}],"version-history":[{"count":4,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4857\/revisions"}],"predecessor-version":[{"id":27775,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4857\/revisions\/27775"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=4857"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=4857"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=4857"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}